February 5, 2015

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The so-called “court-packing” scheme was endorsed heartily by The Nation when Roosevelt first suggested it on this day in 1937—unsurprisingly, as the plan was floated in the magazine almost four years earlier by Washington correspondent Paul Y. Anderson, a great muckraker who had helped break the Teapot Dome scandal during the Harding administration. In fact, the magazine’s support for the scheme—which would have forced retirement of elderly judges and allowed the president to nominate more justices than the traditional, but not constitutionally imposed, nine—led its publisher at the time, a banker named Maurice Wertheim (father of the historian Barbara Tuchman), to sell the magazine, as he was tired of the abuse from his friends at the club. Anyway, it seems remarkable that only four months into Roosevelt’s first term (the following note, “If the Supreme Court Objects…” was published in our July 19, 1933, issue) Anderson saw so clearly into the future, predicting both Republican and Court antipathy for the New Deal program and the administration’s likely response.

It is often and pertinently asked what the United States Supreme Court will say about the constitutionality of some of the Roosevelt measures. Certainly there are at least three reactionary old men on that bench who would take profound satisfaction in standing by their plutocratic concepts of society if they knew the mob was battering at the door, and there may be more than three. That eventuality already has been seriously considered here by persons interested in the success of the new deal. There are ways of meeting it. Congress could pass an act requiring members of the court to retire upon passing the age of retirement…. Or the size of the court could be increased by law to permit the appointment of additional Justices whose ideas developed subsequent to the year 1880. It has been done. If this reporter knows anything about the temper of the present Administration, it will never permit the whole economic structure of this country to be disrupted and demoralized because less than a half a dozen dyspeptic old men are determined to uphold precedents established before the invention of the telephone. As has often been made clear on these pages, I do not relish these encroachments of the executive upon the prerogatives of the other branches, but sometimes a condition arises which must be dealt with. The blame for such bad precedents properly rests on those who produce the conditions.

To mark The Nation’s 150th anniversary, every morning this year The Almanac will highlight something that happened that day in history and how The Nation covered it. Get The Almanac every day (or every week) by signing up to the e-mail newsletter.

Richard KreitnerTwitterRichard Kreitner, a contributing writer to The Nation, is working on a history of American disunion.